The Nuts and Bolts of Electioneering Communications

The central provision of the Bipartisan Campaign Reform Act
(BCRA), otherwise known as the McCain-Feingold law, is a ban on unlimited
"soft" money contributions by corporations, labor unions and wealthy
individuals to the national political parties. In an effort to further
curb the influence of corporate and labor money on federal elections, the
bill's sponsors included restrictions on certain types of advertising just
before an election.

The law applies to "electioneering communications," which are
defined as

broadcast ads (television or radio)

airing within 30 days of a primary election or 60 days of a
general election

that mention or refer to a federal candidate

and are aimed at 50,000 or more members of the electorate of the
office the candidate is seeking.

BCRA prohibits corporations and labor unions from funding
electioneering communications. That prohibition went into effect Sept. 3,
the start of the 60-day period before the November elections. Individuals
or groups spending at least $10,000 on electioneering communications must
report that activity to the Federal Election Commission within 24 hours.

Q: Does this mean no corporate or union funds can be spent
on ads just before an election?

A: No. The restriction on electioneering communications applies
only to broadcast ads, which the Federal Election Commission defined as ads
aired on radio or shown on television. Ads that appear in newspapers or
magazines, on flyers, on the Web or anywhere else besides radio or television
are not considered to be electioneering communications and may be paid for
with corporate or union funds at any time before an election. Ads that do not
mention or refer to a federal candidate are not considered to be electioneering
communications either.

At no time can corporations or labor unions pay for ads or other
communications that expressly advocate the election or defeat of a presidential
candidate. (The one exception is a small subset of corporations called "MCFL
corporations.")

Q: Can individual funds still be spent on broadcast ads that
mention a federal candidate just before an election?

A: Yes. Individuals can spend as much of their own money as they
want, whenever they want, on ads that mention a federal candidate, as long as
the individual does not "coordinate" with the candidate's campaign.
(Coordination requires an exchange of information on the "plans, needs or
projects" of a campaign, and is considered a contribution to the campaign that
cannot exceed legal limits.) In fact, ads paid for by an individual can do more
than merely mention a candidate. They can contain words of "express advocacy,"
which include "vote for," "vote against," "elect," "defeat," "support" and
"oppose."

Q: If an individual can pay for such ads, can nonprofit
organizations that raise money from individuals do the same?

A: Maybe. Nonprofit advocacy groups, including those organized
under section 527 or 501(c) of the tax code, may not pay for electioneering
communications if the groups themselves are incorporated, regardless of where
they raise their money. If a group is not incorporated, it can sponsor
electioneering communications if it can show that contributions from individuals
were used to pay for the ad.

Q: Can political action committees pay for electioneering
communications?

A: Yes. PACs cannot raise money from corporations or labor unions
(corporate and union PACs collect funds from individual employees or
members, not from the corporate or union treasury). As a result, PACs can
pay for broadcast ads that mention a candidate at any time before an
election. And because PACs raise "hard" money, which is subject to
contribution limits, their ads can expressly advocate the election or
defeat of a candidate with the words "vote for," "vote against," "elect,"
"defeat," "support" and "oppose."

Q: So what has changed now that we're in the 60-day window
before the November elections?

A: The change is in how broadcast ads that mention a candidate are paid
for. Now that we're in the 60-day window, corporations (including
incorporated nonprofits) and labor unions cannot run such ads using funds
from their treasury. Unincorporated nonprofits cannot run such ads either
if they use corporate or union funds to pay for them. Individuals and PACs,
including corporate and union PACs, can pay for these ads. So can
unincorporated nonprofits that show they spent only contributions from
individuals on the ads.

Feel free to distribute or cite this material, but please credit the Center for Responsive Politics. For permission to reprint for commercial uses, such as textbooks, contact the Center.

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